Seifert v. Schillner

62 How. Pr. 97

• Court: New York Supreme Court
• Decided: June 15, 1881
• Status: Published

Opinion

Churchill, J.

— I think I shall he obliged to deny this motion. It is entirely new in the practice, which has covered the whole period of the Code, for the plaintiff to make a motion of this kind. Litigation is war. Parties occupy, as the courts recognize, hostile positions; each man is expected to put himself into position to protect his rights. The court will see that the parties do not exercise any fraud, either upon the other, but will not compel a party who has himself noticed a case for trial, but for some reason does not move it, to pay costs to another party who has not put himself in the same position. By noticing a case he keeps for himself control of it at the circuit. The fact that neither party has been able to find any cases in the numerous volumes of reports of practice which have appeared since the adoption of the Code, would seem to he sufficient reason to presume that it was not the practice in this state.

If the plaintiff does not move after he has brought the defendant into court, he may be punished by a motion under the Code to dismiss the case for want of prosecution. But no similar remedy is given by the rules of- practice, or by the Code, or by the acknowledged practice of the court, to the plaintiff, where the defendant having noticed the case for trial does not move it when the case is reached upon the calendar. It might be very proper — I think it would he — that the rules of the court regulating the day calendar should compel the party who puts a cause upon the day calendar to move it when reached, whether noticed by the other side or not. But in the absence of any rule to that effect, I know of no power to grant the motion. It is a novel question and I will deny it, without costs.